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2020-02-11 NE Water Sustainability Fund GrantSTATE OF NEBRASKA DEPARTMENT OF NATURAL RESOURCES NEBRASKA, WATER SUSTAINABILITY FUND GRANT AWARD AGREEMENT FOR APPLICATION NO. 5252 This Agreement is entered into by and between the Nebraska Department of Natural Resources (Department) and the applicant organization, City of Blain, Nebraska (Sponsor), sometimes hereinafter individually referred to as "Party," or collectively referred to as "Parties." WHEREAS, pursuant to the Nebraska Water Sustainability Fund Grant Program (Fund), Neb. Rev. Stat.. § 61-222 and § 2-1511(2), and Title 261 of the Nebraska Administrative Code (NAC Title 261), the Nebraska Natural Resources Commission (Commission) and the Department are charged with the responsibilities of establishing and administering a grant process for the purpose of attaining the goals set out in Neb. Rev. Stat, § 2-1506; and WHEREAS, the Sponsor submitted application number 5252 (Application) requesting a grant under the Fund for a project titled "City of Blair Water Supply Resiliency Project" (Project). A copy of the Application is located at nre.nebraska.gov and is hereby incorporated by reference into this Agreement; and WHEREAS, the Commission has adopted rules for administration of the Fund under NAC Title 261, which are hereby incorporated into this Agreement by reference; and WHEREAS, the Commission approved the Project and awarded the Sponsor a grant of $6,006,000.00 to carry out the Project. NOW, THEREFORE, in consideration of the mutual promises and understandings contained herein, the receipt and sufficiency of which is hereby acknowledged, the Department and Sponsor hereby mutually agree as follows: 1. Exclusive State Funding. Resources from the Fund will not replace any local share required by other state funds expended by the Sponsor in carrying out the Project. 2, Term. This Agreement shall be for a term commencing on December 18, 2019 and continuing thereafter until Project close out, unless all eligible reimbursements are made prior to that time thus terminating the Agreement as completed, or unless the Agreement is: A. Terminated with cause in the event either Party defaults on any of its material obligations or representations under this Agreement. The non -defaulting panty shall notify the other Party in writing, specifying in detail the nature and extent of such breach, If within thirty (30) calendar days after written notice of such default, the defaulting Party fails to remedy the default, this Agreement will terminate. B. Terminated by the Department, in whole or in part, in the event funding is no longer available. If funds are revolted by the Legislature, the Department may terminate any portions of the Agreement for which funds have become unavailable. The Department will give the Sponsor notice of such revocation as soon as possible. The Sponsor shall be entitled to receive reimbursements subject to the availability of such funds for any authorized work that has been satisfactorily completed as of the termination date. C. Amended by written amendment signed by both parties. 3. Scope of Agreement. A. Sponsor shall complete through its own efforts, or through contracting with a capable party, the obligations for completing the Project as set forth in the Application. B. Any changes to the scope of the Project shall be considered according to procedures set out in NAC Title 261. 4. Agreement Managers, A. The Department's Agreement Manager is Kent Zimmerman, His telephone number is (402) 471-0575. His address is; Nebraska Department of Natural Resources, P.O. Box 94676, Lincoln, NE 68509-4676. His email address is trent zimmerman(a�nebraska.gov. B. The Sponsor shall designate a person as the Sponsor's Agreement Manager to direct or report on the Sponsor's work under the Project and coordinate with the Department. The Sponsor's Agreement Manager is Al Iand its ter address is her email address is 2161 r- VN, r d C. Communications under this Agreement shall be through the respective Agreement Managers. D. The Sponsor may change its Agreement Manager only after notifying the Department in writing, S. Reimbursement. A, From the annual appropriations by the Legislature to the Fund and set aside by the Commission, but subject to subsequent quarterly limitations that may be imposed by the Department of Administrative Service's Budget Office, the Department agrees to reimburse the Sponsor for eligible costs as defined in NAC Title 261 that are incurred after approval by the Commission in the application process and during the term of this Agreement in performance of activities necessary for the Project as described in the Application. 2 B. Total reimbursement amount and payments for this Project shall not exceed $6,006,000.00. Reimbursements shall be limited to amounts approved by the Department as: 1) having met the definition of eligible costs under NAC Title 261; and 2) that include adequate documentation, C. Reimbursement shall be made for expenses electronically submitted by the Sponsor to the Department's Agreement Manager. All submissions shall include a detailed, itemized summary of each reimbursable expenditure and include all appropriate support documentation. (1) Reimbursement requests for expenditures acquiring interests in real property must include, for each legal interest acquired: (a) Title insurance policy showing title in the seller; (b) Closing statement signed by both the buyer and seller; (c) Copy of recorded instrument (deed/casement) from the seller to the Sponsor for the specified real estate; (d) Copy of certified check or wire transfer payable to the seller for the indicated transaction; and (e) Brief explanation of the relationship of the property interest to the Project. (t) If an irrigation water use is to be leased, relinquished, retired or purchased, then prior to the Sponsor entering into an agreement with the real property owner, the Sponsor shall consult with the Department for the purpose of determining if (a) the surface water right is valid and not subject to some known restriction or limitation (such as CREP) or (b) the ground water use is subject to some known restriction or Iimitation (such as CREP). D. Reimbursement payments shall be made by the Department no more often than monthly based upon the reimbursement request submissions. The final billing for all expenses under this Agreement must be clearly marked "final billing," Upon payment of the final billing, any unused Project funds will be transferred into the unreserved balance of the Water Sustainability Fund pursuant to Neb. Rev. Stat. § 2-1507(4), E. Expense records shall be subject to inspection by the Department and any other agency of the State of Nebraska with responsibility for monitoring progress or auditing records pursuant to this Agreement. The Department shall have the right to audit billings both before and after payment, and payment under this Agreement shall not foreclose the right of the Department to recover excessive or improper payments. F. Sponsor, upon payment of the amounts due under this Agreement, releases the Department, its officers and employees, and the State of Nebraska from all liabilities, claims, and obligations whatsoever arising from or under this Agreement. 6, Inspection During and After Construction. The Director of the Department or his or her designated representative(s) shall have the privilege of inspecting the construction of the Project at any time in order to ensure that plans and specifications are being followed, that the works are being constructed in accordance with sound engineering and technical principles and practices, and that the Project continues to provide benefits as proposed in the Application, Such inspection shall never subject the State of Nebraska to any action for damages, 7, ro'eet Completion Ex eeted, Sponsor shall provide and maintain adequate support, including the necessary professional or technical personnel and local funding identified in the Application to permit timely completion of the Project. 8. Independent Contractor. A. The relationship of the Department and Sponsor established by this Agreement is that of independent contractors. Nothing in this Agreement shall be construed in any manner as creating or establishing any agency or employment relationship between the Department and the Sponsor, or contractors of Sponsor. B. All claims on behalf of any person arising out of employment or alleged employment (including but not limited to claims of discrimination against the Sponsor, its officers, or its agents) shall in no way be the responsibility of the Department or the State. The Sponsor will hold the Department and the State harmless from any and all such claims. Sponsor personnel and all other persons acting for the Sponsor are not entitled to any reimbursements, rights, or benefits from the Department or the State including but not limited to tenure rights, medical and hospital care, sick and vacation leave, severance pay, or retirement benefits. 9. Notices. All notices, requests, demands, and other communications hereunder shall be in writing and delivered or mailed, with postage prepaid, to the Agreement Managers at the addresses set forth in Paragraph 4 of this Agreement. 10. Binding, This Agreement shall inure to and bind the successors, assigns, and representatives of the Parties, providing, however, this Agreement may not be assigned by either Party without the prior written consent of the other. Neither the Department nor the Sponsor intends anyone to be a third -party beneficiary of this Agreement. 11. Entire Agreement/Severability/Waiver. This Agreement is the entire agreement between the parties hereto; no representations, inducements, promises, or agreements, oral or otherwise, between the Parties not embodied herein shall be of any force or effect. In the event any provision of this Agreement shall be 4 held invalid and unenforceable, the remaining provisions shall be valid and binding upon the Parties. One or more waivers by either Party of any provision, term, condition, or covenant shall not be construed by the other Party as a waiver of a subsequent breach of the same by the other Party. 12. Amendment of ,A.gmtrient. This Agreement may be amended only by a written instrument signed by the Department and the Sponsor. 13. Attachments. If there are any terms and conditions contained in any Attachment hereto that are inconsistent with the terms and conditions contained in this Agreement, the terms and conditions of the Attachments shall be construed to conform to the terms of this Agreement unless specifically expressed in a writing signed by the Parties. 14. Prevailing Law. This Agreement is governed by the laws of the State of Nebraska including the State Contract Claims Act, Neb. Rev. Stat. §§ 81-8,302 through 818,306. 15. Indemnification. Neither the Department nor the State of Nebraska shall be liable for any damage or compensation payable with respect to or in consequence of any accident or injury to any workman or other person in the employment of the Sponsor that would be covered by Worker's Compensation insurance, liability insurance, or otherwise, except all accident or injury resulting from an intentional act of the Department. The Sponsor shall indemnify, defend, and hold harmless the Department and the State of Nebraska against all such damages, compensation, and against all claims, proceedings, costs, charges, attorney's fees, and expenses whatsoever in respect thereof or in relation thereof. The Sponsor shall indemnify the Department and the State of Nebraska for any damages, claims, or liability to the extent caused by the Sponsor's negligent acts, errors, or omissions arising out of the performance of professional services under this Agreement. The Sponsor expressly waives all statutory or common law defenses, including but not limited to those under Workers' Compensation, Contribution, Comparative Fault or similar statutes or legal principles to the extent said defenses are inconsistent with or would defeat the purpose of the indemnification under this section. 16. Drug Free Work Place Policy. Sponsor certifies that it maintains a drug free worts place environment to ensure workers safety and workplace integrity. Sponsor agrees to provide a copy of its drug free workplace policy at any time upon request by the Department. 17, Technology Access. 5 Sponsor agrees to ensure compliance with Nebraska Access Technology Standards. See website at; littp•/hiitc nebraslca,gov/standards/2-2014Lcif, In the event that the State's technology access standards change duringthe term of the Agreement, the Department may create an amendment to the Agreement to ensure that it comply with the changed standard. If the amendment causes any changes in costs to the Sponsor, the costs shall be mutually agreed on by both Parties. 18, Fair Employment Practices, Sponsor agrees to ensure compliance with the Nebraska Fair Employment Practice Act, which prohibits contractors of the State of Nebraska, and their subcontractors, from discriminating against any employee or applicant for employment, with respect to hire, tenure, terms, conditions, or privileges of employment because of race, color, religion, sex, disability, or national origin, Neb. Rev. Stat. §§ 48-1101 through 48-1125. 19. Worker Eli i� bility Status Requirements, The Sponsor is required and hereby agrees to use a federal immigration verification system to determine the work eligibility status of any new employees paid with proceeds of this Agreement that are physically performing services within the State of Nebraska. The Sponsor understands and agrees that lawful presence in the United States is required for such employment and the Sponsor may be disqualified or the Agreement terminated if such lawful presence cannot be verified as required by Neb. Rev. Stat. § 4-108. A federal immigration verification system means the electronic verification of the work authorization program authorized by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C. 1324a, known as the E -Verify Program, or an equivalent federal program designated by the United States Department of Homeland Security or other federal agency authorized to verify the work eligibility status of a newly hired employee. 20. Compliance with All Laws and Ordinances. Sponsor covenants that it does and shall at all times pertinent to this Agreement comply with all state, federal, and local laws, ordinances and regulations including but not limited to corporate registration, payment of taxes and registration required for payment of taxes, and acquisition and payment for any permits, licenses, and approvals necessary for completion of the Project. 21. Audit Requirements. All of the Sponsor's books, records, and documents relating to work performed or monies received under the Agreement shall be subject to audit at any reasonable time after reasonable notice by the Department, The Sponsor shall maintain all of these records for a period of five (5) years from the date of final payment, or until all issues related to an audit, litigation, or other action are resolved, whichever is longer. All records shall be maintained in accordance with generally accepted accounting principles. 22, Audit by Office of State Auditor, on Any public or private non-profit entity or political subdivision of the State serving as the recipient or.sub-recipient of funds under this Agreement, except for an individual person, is subject to audit by the Office of State Auditor and must comply with requests for any information or records within three (3) business days after an the actual receipt of the request pursuant to Neb, Rev, Stat. § 84-304 (4)(a) and § 50-1213 (2), 23. Annual Report, The Sponsor will annually submit to the Department's Agreement Manager, electronic reports on or before April 1St of each year up to and including the year final payment is made to the Project, Annual reports shall specify the reporting period and contain information detailing Project progress and the anticipated progress for the next year; and shall include some analysis of whether the Project is attaining its purposes as identified in the Application, After Project completion/close out, annual reports are no longer required unless real estate or other real property acquired or constructed as part of this Project is rented or otherwise generating revenue exclusive of park entry fees, city fees, or revenue not resulting from the Project. 24, Final Report The Sponsor will electronically submit to the Department's Agreement Manager, a final report summarizing the results of the Project and discussing whether or not the benefits described in the Application were achieved or not. IN WITNESS WHEREOF, the parties have executed this Agreement on the date last stated below, Sponsor By: . 6� �' C+�t 64 61urr Nebraska Department of Natural Resources By: Gordon W, Fassett, PE, Director Department of Natural Resources 301 Centennial Mall South P.O. Box 94676 Lincoln, NE 68509-4676 APP___ R®��� V NDNR LEGAL COUNSEL 7 Date q/!' Z6 Date Z 21 Zb 2 b This Agreement signed in duplicate,